Supreme Court: Surrogacy Age Limit Not Applicable to Couples Who Began Before 2022

The Supreme Court has ruled that couples who started the surrogacy process before the Surrogacy (Regulation) Act, 2021 came into effect in January 2022 will not be bound by the age limits prescribed under the law.

A Bench of Justices BV Nagarathna and KV Viswanathan delivered this verdict while hearing petitions from three couples who had crossed the upper age limits set by the Act—50 years for women and 55 years for men—but had already begun their surrogacy procedures before the law came into force.

The Court said that if the surrogacy process had already started—such as freezing embryos or transferring them into a surrogate’s womb—the age restriction would not apply. “If any other couple faces a similar issue, they may approach the High Court for relief based on this judgment,” the Bench added.

Justice Nagarathna clarified that the term “surrogacy process” refers to concrete steps like extracting gametes, fertilising embryos, or freezing them, and not merely visiting a medical clinic. The ruling applies to cases where the couple had clearly shown their intention to proceed with surrogacy before the Act took effect.

She further stated that if a surrogate child is born within ten months of the Act’s enforcement, the age limits would not apply, since the process was already underway.

Justice Viswanathan, in his concurring opinion, observed that the petitioners had exercised their liberty to have a child via surrogacy at a time when no such restrictions existed. “It was only later that the age and marital status conditions were introduced,” he said.

The Bench also remarked that the government’s justification for applying the 2021 law retrospectively was not convincing. While the Court refrained from ruling on the constitutional validity of age limits, it did question the rationale behind restricting older couples from choosing surrogacy.

“The government says the age limit is for the welfare of children, but there are no such limits for couples who conceive naturally,” the Court noted.

The Surrogacy (Regulation) Act, 2021, which came into force on January 25, 2022, requires intending couples to be married and within the prescribed age brackets—23 to 50 for women and 26 to 55 for men—to avail surrogacy services.